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Philadelphia pays $2 million to Catholic agency following foster care dispute


Courtesy of Becket

John Burger - published on 11/23/21

City agrees to renew Catholic Social Services’ contract and pay legal and other fees incurred in religious liberty case that went to Supreme Court.

The City of Philadelphia has settled with a Catholic foster care agency that won its case at the United States Supreme Court in June.

The city agreed to renew Catholic Social Services’ contract and pay some $2 million in legal and other fees. For their part, Catholic Social Services agreed to post on its website a warning that it does not work with same-sex couples and to provide referrals to agencies that do.

Philadelphia decided not to fight the case further, fearing that it might lead to the narrow Supreme Court ruling in Fulton v. City of Philadelphia to being applied more broadly.

The high court ruled that the city’s decision to not contract with Catholic Social Services, which is affiliated with the Roman Catholic Archdiocese of Philadelphia, for the provision of foster care services unless the agency agreed to certify same-sex couples as foster parents is a violation of its religious liberty.

The city had maintained that CSS’s refusal to certify same-sex married couples violated both a non-discrimination provision in the agency’s contract with the city as well as the non-discrimination requirements of the citywide Fair Practices Ordinance.

Under the agreement, the city paid Becket Law, the religious liberty law firm that represented CSS, $1.95 million in legal fees. An additional $56,000 was paid to Catholic Social Services, according to the Philadelphia Inquirer.

“As part of the settlement agreement, the city wrote into CSS’s contract that it would be exempt from the citywide nondiscrimination ordinance, which prohibits city contractors from discriminating based on race, gender, or sexual orientation,” the Inquirer reported. “The agency’s 2022 contract for foster care is $350,000. The agreement also stipulates that the city work with the women named in the suit, Sharonell Fulton and Toni Simms-Busch, both longtime foster parents with CSS.”

“We are grateful that our ministries can continue serving those who count on us, especially foster children in need of a loving home,” Ken Gavin, a spokesman for the Archdiocese of Philadelphia, told the newspaper.

The Inquirer said that as a direct result of the case, the city also removed an exemption clause in its contracts, which was the crux of the high court’s ruling in June.

In its opinion, the Supreme Court did not say that the city’s nondiscrimination policy is itself unconstitutional, but rather that it was not applied neutrally since an exemption was not granted but was by contract permitted,” the Inquirer said. “The city says it has never granted an exemption, but Chief Justice John Roberts and the five other justices who joined his opinion concluded that the mere possibility meant the law couldn’t be applied neutrally without making individual judgment calls involving the circumstances of each case.”

In spite of the fact that the court’s decision in Fulton was unanimous, many legal experts found that the ruling was a narrow one that will not have much effect beyond defending the agency’s right to operate contrary to Philadelphia’s non-discrimination statutes.

But the case has had an impact beyond the city. On November 1, the Supreme Court vacated a New York State court’s ruling against the Roman Catholic Diocese of Albany, which had challenged a state mandate that health insurance policies include coverage for abortions. In remanding the case to New York’s highest court, the Supreme Court instructed it for further consideration in light of Fulton v. Philadelphia.

Religious Freedom
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